Book Review: Cowen and Zines's Federal Jurisdiction in Australia Third Edition, the Federation Press (2002)
| DOI | 10.1177/0067205X0403200107 |
| Date | 01 March 2004 |
| Author | WMC Gummow |
| Published date | 01 March 2004 |
| Subject Matter | Book Reviews |
COWEN AND ZINES'S FEDERAL JURISDICTION IN
AUSTRALIA THIRD EDITION, THE FEDERATION PRESS
(2002)
The Hon Justice WMC Gummow, AC*
An understanding of the federal jurisdiction provided for in Ch III of the Constitution
cannot be the preserve of specialist lawyers. This is because that understanding is vital
to an appreciation of the operation of the Australian legal system as a whole.
The recent spate of cases brought under s 75(v) of the Constitution to construe the
Migration Act 1958 (Cth) and to review for jurisdictional error administrative decisions
in migration matters emphasise the close and necessary connection between federal
jurisdiction, the Marbury v Madison doctrine,1 and administrative law.
In John Pfeiffer Pty Ltd v Rogerson ('Pfeiffer'),2 the High Court addressed the
prevailing confusion stemming from its earlier decisions in McKain v R W Miller & Co
(SA) Pty Ltd3 and Stevens v Head.4 Of those decisions, Sir Anthony Mason recently said
that they were 'stark illustrations of the depth to which undiscriminating adherence to
precedent will drive a court'.5 What is of present interest is that the joint judgment in
Pfeiffer gave detailed consideration to the question whether either of the double
actionability rules or a choice of law rule was applicable in matters within federal
jurisdiction.6
_____________________________________________________________________________________
*
Justice of the High Court of Australia.
1
See Marbury v Madison, 5 US (1 Cranch) 137 (1803).
2 (2000) 203 CLR 503, discussed in Greg Taylor, 'The Effect of the Constitution on the
Common Law as Revealed by John Pfeiffer v Rogerson' (2002) 30 Federal Law Review 69.
3
(1991) 174 CLR 1.
4
(1993) 176 CLR 433.
5 Sir Anthony Mason, 'Choosing between Laws', (Paper presented at the Festschrift in
honour of Geoffrey Lindell, Melbourne University, 8 December 2002) 1.
6
(2000) 203 CLR 503, 529–32 [50]–[58].
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Federal Law Review Volume
32
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The position now has been established, in Plaintiff S157/2002 v Commonwealth,7 that
s 75(v) entrenches a measure of judicial review which is not limited to review for
legislative or executive acts in excess of constitutional power. The remedies provided
by s 75(v) do not lie as of right;8 the existence of a right of appeal to the High Court,
subject to the grant of special leave, is a relevant consideration in the exercise of the
jurisdiction under s 75(v).9 Further, it at last has been established that the liability of
the Commonwealth in tort is created by the common law of Australia and that it is
s 75(iii) of the Constitution rather than legislation which denies any operation of Crown
or Executive immunity which otherwise might be pleaded to such actions.10 This view
of the significance of s 75(iii) reflects the statement by Sir Owen Dixon in 1935 that a
fundamental principle of the federal system is the supposition in s 75 that the
Commonwealth (and, in some cases, the States) are under liabilities enforceable in
legal proceedings.11
Reference also should be made to Australian Securities and Investments Commission v
Edensor Nominees Pty Ltd ('Edensor').12 Much of the jurisdictional litigation in the
Edensor matter may have been avoided if there had been an appreciation before the
litigation reached the High Court that federal jurisdiction was attracted on the direct
footing that, for the purposes of s 75(iii) of the Constitution, ASIC was to be regarded as
'a party' which is 'the Commonwealth'.13
Professor Zines gives detailed consideration to Re McBain; Ex parte Australian
Catholic Bishops Conference.14 He explains what was at the heart of the case as follows:15
It was accepted by all parties that the Federal Court judge had acted within his
jurisdiction. The Attorney-General was not seeking to obtain relief in respect of any right
or interest of the Commonwealth or its public. The matter was within the sphere of the
State Attorney-General, whose function it is 'to represent the interest of the public of that
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